CA7: Being in a high crime area with a 10 year old arrest isn’t PC; no QI

Not even arguable probable cause for plaintiff’s arrest, and the officer gets no qualified immunity. Being on a drug corridor, nervous, no current address on DL, temporary insurance card, and a 10 year old arrest isn’t probable cause. Huff v. Reichert, 744 F.3d 999 (7th Cir. 2014)*:

Reichert states that he had arguable probable cause because (1) Huff’s driver’s license did not have his current address; (2) Huff was carrying a temporary proof of insurance card; (3) Huff had two decade-old arrests, one for marijuana cultivation and the other for battery; (4) Seaton was nervous; and (5) the stretch of highway where Reichert stopped the car is used by motorists to carry drugs and guns.

These considerations did not provide arguable probable cause in this case. First, Huff’s documents were both valid. See 625 ILCS 5/6-114 (explaining that if a driver’s “residence address” changes, he may apply for a “corrected … license”); Ill. Admin. Code § 8010.20 (providing that a temporary insurance card is valid proof of insurance). Second, neither of Huff’s prior arrests resulted in a conviction. A prior arrest (and especially one that does not result in a conviction) shows very little, if anything, about the likelihood that a person committed a crime a decade later. See United States v. Walden, 146 F.3d 487, 490 (7th Cir. 1998) (“Reasonable suspicion of criminal activity cannot be based solely on a person’s prior criminal record.”); United States v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997) (same); see also U.S. ex rel. DeNegris v. Menser, 360 F.2d 199, 203 (2d Cir. 1966) (“At best, [a prior arrest] only implies that the police suspected them of [illegal] activity at that” earlier time); Beck v. Ohio, 379 U.S. 89, 97, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964) (“We do not hold that the officer’s knowledge of the petitioner’s physical appearance and previous record was either inadmissible or entirely irrelevant upon the issue of probable cause. But to hold knowledge of either or both of these facts constituted probable cause would be to hold that anyone with a previous criminal record could be arrested at will.”) (citation omitted). Third, the plaintiffs deny that Seaton was nervous, and we accept their account at this stage.3

3 In any event, our court—along with the First, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits—has held that nervousness is “of limited value in assessing reasonable suspicion” and/or is so common that it alone cannot justify a Terry stop. United States v. Simpson, 609 F.3d 1140, 1147 (10th Cir. 2010); accord United States v. McKoy, 428 F.3d 38, 40 (1st Cir. 2005) (“Nervousness is a common and entirely natural reaction to police presence … .”); United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004) (“[A]lthough nervousness has been considered in finding reasonable suspicion in conjunction with other factors, it is an unreliable indicator, especially in the context of a traffic stop. Many citizens become nervous during a traffic stop, even when they have nothing to hide or fear.”) (citations omitted); United States v. Portillo-Aguirre, 311 F.3d 647, 656 n.49 (5th Cir. 2002) (“We have never held that nervousness alone is sufficient to create reasonable suspicion of criminal activity.”); United States v. Jones, 269 F.3d 919, 929 (8th Cir. 2001) (suspect’s nervous demeanor alone was not enough to establish reasonable suspicion); United States v. Chavez-Valenzuela, 268 F.3d 719, 726 (9th Cir. 2001) (holding that “extreme nervousness” during a traffic stop does not alone “support a reasonable suspicion of criminal activity, and does not justify an officer’s continued detention of a suspect after he has satisfied the purpose of the stop.”); United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999) (“Nervousness … alone will not justify a Terry stop and pat-down … .”).

Finally, probable cause cannot stem only from a suspect’s presence in a high-crime area. Although “a high crime area” is a permissible consideration in considering the totality of the circumstances, United States v. Jackson, 300 F.3d 740, 746 (7th Cir. 2002), this consideration alone does not even support reasonable articulable suspicion. Lawshea, 461 F.3d at 860 (“[M]ere presence in a high-crime area does not … itself justify an investigatory stop.”); Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (same). For the high-crime-area factor to carry weight in a probable cause determination, there should be “a reasonable connection between the neighborhood’s higher crime rate and the facts relied upon to support probable cause.” Whitehead v. Bond, 680 F.3d 919, 932 (7th Cir. 2012).

Under these circumstances, we do not see even arguable probable cause. Even if two arrests from a decade ago were moderately relevant, it is hard to see how those arrests in conjunction with driving through a high-crime area would lead a prudent, reasonable officer to conclude that Huff was committing a crime. Therefore, Reichert is not entitled to qualified immunity on the plaintiffs’ claims of false arrest.